Justice Sector and the Rule of Law - AfriMAP

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which are mostly outdated—decisions made as long ago as 1994 have not yet been published—and unaffordable for most people. There are also few textbooks that comment specifically on theapplication of Malawian law and there is only one law journal published in Malawi.The Internet and other electronic resources have not so far been able to fill the gap in theprovision of legal information, due to infrastructural and technical constraints which make theoption expensive and inefficient. Nevertheless, this is an option that should be explored further.Of course, the most obvious recommendations to improve the situation related to the provision oflegal information are that the government must invest in the institutions responsible for publishinglegislation, such as the Ministry of Justice and the Government Printer; ensure distributionof information resources particularly to rural justice centres; and undertake an audit of relevantelectronic resources and recommend measures for increasing their efficient, cost-effective anduser-friendly application to the information production and dissemination needs of the sector.The Constitution provides for the courts to be ‘independent of the influence and direction ofany other person or authority.’ In general, this principle has been respected in recent years.The most serious threat to judicial independence in recent times occurred in 2001 when theNational Assembly (the lower and currently only house of Parliament) used its power underthe Constitution to petition the president to request the removal from office three judges of theHigh Court—allegedly for incompetence and misconduct, but in fact clearly for political reasons.Thanks to public outcry, the petition was, however, unsuccessful. Freedom from such politicalinterference could be greatly increased by providing the courts with increased financial autonomy.The judiciary has derived some revenue from its own sources since the Judicature AdministrationAct of 2000 gave it the right to retain some of the payments made into court. However, mostfunding still comes from executive subventions and the courts’ budget is centrally controlled bythe Treasury. The financial autonomy of the judiciary is one of the factors that was identified by theMalawi Poverty Reduction Strategy Paper as being a critical element of governance.The Malawi Judiciary Development Programme, 2003–2008, provides for the judiciary tosecure financial independence by, among other things, establishing direct reporting by the chiefjustice to Parliament for all budgetary matters. The programme does not elaborate the formthat direct reporting by the chief justice to Parliament would entail, though it is reasonable toexpect that it would include submission of budgets and accounts to the relevant committees ofParliament for their scrutiny and approval. The judiciary should, as a matter of urgency, make asubmission to the Ministry of Finance and the Budget Committee of Parliament which sets outin detail what specific measures and reforms in the budget formulation and implementationprocess it considers to be necessary to secure its financial autonomy.
The Constitution establishes safeguards for judicial independence by providing for most appointmentsto be made by the president on the recommendation of a Judicial Service Commission,and for the chief justice to be appointed by the president subject to confirmation by the NationalAssembly (section 111). The members of the Judicial Service Commission are appointed by thepresident and consist of the chief justice (who is the chair), the chairperson of the Civil ServiceCommission, an appeal justice, a legal practitioner and a magistrate. Occasionally, there havebeen concerns that some appointments have been made by the president without referenceto the Judicial Services Commission. Since communications between the president and theJudicial Service Commission are not transparent, however, it is not possible to substantiate suchallegations definitively. Similarly, it is unclear how eligibility for promotion within the judiciaryis determined.Judicial appointments must be made more transparent. The criteria on which judicial officialsare appointed must be made public and those who fail to be appointed must be informedof the reasons for their failure. Similar rules must be introduced with regard to promotions. Inaddition, the process must become more accountable to the public through their democraticallyelected representatives. Membership of the Judicial Service Commission must be expandedto include representation from Parliament, at the very least. The appointment of judges of theHigh Court should be subjected to parliamentary confirmation (as for the chief justice) to furtherpromote democratic accountability of the judiciary.The law provides safeguards for the independence of the prosecution service. The service isheaded by the director of public prosecutions (DPP), who is required by section 101(2) of theConstitution to be ‘independent of the direction or control of any other authority or person andin strict accordance with the law’ but subject to ‘the general or special directions’ of the attorneygeneral.In practice, it has been alleged that the executive has occasionally interfered with theindependence of the prosecution service by removing an incumbent DPP from office unconstitutionallyand, in other cases, by directly interfering in prosecution decisions under the guiseof directions made by the attorney-general. The office of the DPP itself has also been accusedof undermining the independence of the Anti-Corruption Bureau, which is a quasi-autonomousstate agency responsible for prosecuting corruption cases. Section 42(1) of the CorruptPractices Act of 1995 requires the bureau to seek the consent of the DPP before commencingany prosecution. It has been alleged that in some cases, the office of the DPP has underminedthe prosecutorial independence of the bureau by withholding consent for prosecution of caseson political grounds. The independence of the Anti-Corruption Bureau also appears to be opento interference by the president who is empowered by section 6(3) of the Corrupt Practices Actto suspend the director of the bureau if he or she ‘considers it desirable in the public interestso to do’ pending a decision whether the director should be removed from office. According to
Page 1 and 2: MalawiJustice Sector and the Rule o
Page 6 and 7: Judicial review of the constitution
Page 8 and 9: Numerous individuals and research o
Page 10 and 11: The 1994 democratic Constitution th
Page 15 and 16: This discussion paper is based on t
Page 17 and 18: The Law Commission makes its recomm
Page 19 and 20: In recent years, government respect
Page 21 and 22: the effective follow-up of recommen
Page 23: funds for this purpose are still su
Page 27 and 28: In order for lawyers to effectively
Page 29 and 30: enhancing consistency, compensation
Page 31 and 32: tions consistent with human dignity
Page 33 and 34: As a result of these barriers, most
Page 35 and 36: The Human Rights Commission is esta
Page 39 and 40: The end of Banda’s dictatorial ru
Page 41 and 42: The adoption of a new Constitution
Page 43 and 44: However, the government withdrew th
Page 45 and 46: provides the legal framework within
Page 47 and 48: order. In 1993, after pressure from
Page 49 and 50: public servant, provides that a pub
Page 51 and 52: his or her defence at the close of
Page 53 and 54: The High Court has unlimited origin
Page 55 and 56: Commission should first undertake f
Page 57 and 58: court of appeal for cases in tradit
Page 59 and 60: The Constitution provides for the L
Page 61: (CIDA), the Norwegian Agency for De
Page 64 and 65: annually financed by grants and con
Page 66 and 67: to pay lawyers in private practice
Page 68 and 69: give the attorney-general two month
Page 70 and 71: country-wide food shortage in 2000.
Page 72: upon the seriousness of the governm
Page 76 and 77:
country’s vice-president. 173 Amo
Page 78 and 79:
tutions of the justice sector were
Page 80 and 81:
efforts to lobby the government to
Page 82 and 83:
controlled by the Treasury. 201 The
Page 84 and 85:
improving supervision of court regi
Page 86 and 87:
of the deceased spouse. 230 They at
Page 88 and 89:
for other sufficient reason’ to b
Page 91 and 92:
Under the Banda dictatorship the ju
Page 93 and 94:
after official working hours, there
Page 95 and 96:
country. 267 Women, therefore, cons
Page 97 and 98:
has been accepted in lieu of formal
Page 99 and 100:
included extensive coverage of huma
Page 101 and 102:
held disciplinary hearings relating
Page 103 and 104:
for the case from the date when the
Page 105 and 106:
By September 2005, the country had
Page 107 and 108:
Legal Education and Legal Practitio
Page 109:
Both lawyers and members of the pub
Page 112 and 113:
lished between extreme poverty and
Page 114 and 115:
on public goodwill to support any r
Page 116 and 117:
crime-fighting operations. The oper
Page 118 and 119:
Since 1996, the Public Service Act
Page 120 and 121:
a change of behaviour of police off
Page 122 and 123:
mechanisms for enforcing the author
Page 124 and 125:
minister responsible for justice au
Page 126 and 127:
The official language of the courts
Page 128 and 129:
According to the study, the crimina
Page 130 and 131:
his or her continued incarceration.
Page 132 and 133:
Conference in 1995. 446 The confere
Page 134 and 135:
the Prison Inspectorate, the Prison
Page 136 and 137:
long-standing problems. 473 Followi
Page 138 and 139:
national standards on the rights of
Page 140 and 141:
There is only one known facility th
Page 143 and 144:
Court fees in Malawi’s judicial i
Page 145 and 146:
In addition to distance, other fact
Page 147 and 148:
ing any person access to the courts
Page 149 and 150:
There have been several initiatives
Page 151 and 152:
Any person or group of persons with
Page 153 and 154:
Mwadzangati v Daud Wood t/a Wood Co
Page 155 and 156:
The full reports by the ombudsman a
Page 157 and 158:
The powers of the Human Rights Comm
Page 159 and 160:
command the respect of their commun
Page 161 and 162:
officers of the ‘traditional or l
Page 163 and 164:
The justice sector in Malawi is hea
Page 165 and 166:
Another structure that provides the
Page 167 and 168:
Most development partners provide t
Page 169 and 170:
Donors hire their staff both locall
Page 171 and 172:
Department of Legal Aid, the judici
Page 173 and 174:
national budget. In the event, the
Page 176:
Indicative summary of donor assista
Page 182 and 183:
Phiri KM and Ross KR (eds.), Democr
Page 184:
Kalekeni Kaphale, lawyer in private
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